JUDGMENT Shree Chandrashekhar, J. - The appellants, namely, Raja Balmuchu and Purty Kunkal have faced the trial on the charge under sections 364, 302 and 201 read with section 34 of the Indian Penal Code and they have been sentenced to R.I. for ten years and fine of Rs. 1,000/- each for the offence under section 364/34 of the Indian Penal Code, R.I. for life and fine of Rs. 2,000/- each for the offence under section 302/34 of the Indian Penal Code, R.I. for two years and fine of Rs. 500/- each for the offence under section 201/34 of the Indian Penal Code. 2. Jhinki Kui, wife of the deceased, namely, Budhram Birua is the informant in this case. On the basis of her fardbeyan recorded on 18th October, 2009 at 14:10 hrs. in her village, Manjhari P.S. case no. 26 of 2009 was lodged against the appellants and after investigation charge-sheet was submitted under section 364, section 302 and section 201/34 of the Indian Penal Code. 3. During the trial, the prosecution has examined eight witnesses; the informant is PW-6. 4. The prosecution witnesses-Dudu Birua-PW-1, Don Singh Birua-PW-2, Munsi Birua-PW-3 and Mulia Kunkal-PW-4 have been declared hostile at the instance of the prosecution. 5. To prove the charge against the appellants the prosecution has led evidence on ;(i) last-seen-together, (ii) confessional statement of the accused, (iii) recovery of dead body and crime weapon, and (iv) medical evidence. 6. On the point of last-seen-together, the prosecution has examined the wife of Budhram Birua. Her evidence is sought to be corroborated by P.W.-5. In her fardbeyan, the informant has stated that on Friday, at about 7:00 p.m. in the evening Raja Balmuchu and Purty Kunkal came to her house and invited her husband over dinner. They took her husband to their house, however, in the night her husband did not come back home. Next day morning, she has gone to inquire from Raja Balmuchu who told her that after dinner and drinks (haria) in the night in the house of Purty Kunkal, they had parted for their home. Then, the informant inquired from Purty Kunkal also about her husband, but he told that after dinner her husband and Raja Balmuchu had gone towards the pond. Then, the informant inquired from Purty Kunkal also about her husband, but he told that after dinner her husband and Raja Balmuchu had gone towards the pond. On enquiry with her relatives the informant could not trace out her husband, so, she lodged a report with the police apprehending that the appellants have killed her husband. In the court the informant is examined as PW-6. In her examination-in-chief, she has stated that in the night the appellants came to her house and took her husband for dinner. Her husband left home with them but did not come back in the night. The prosecution witness, namely, Shashi Bhusan Kunkal-PW-5 has stated that on 20.10.2009 wife of Budhram Birua came to his house and informed him that the appellants had taken her husband over feast, but thereafter he did not come back home. 7. In law, if a person is lastly seen in the company of an accused and immediately thereafter his dead body is recovered, the accused must offer some explanation what has happened after he was seen lastly in the company of the deceased. But then, there are other factors which decide the reliability of last-seen-together evidence which may form an additional circumstance in the chain of the circumstances for proving the charge of murder against an accused. The proximity test, that is, the time gap between last-seen and recovery of the dead body, an intervening circumstance and a plausible explanation by the accused are some of the factors which have to be kept in mind to decide whether the last-seen-together evidence laid by the prosecution can be considered as an incriminating circumstance. It is also well-settled that only on the basis of last-seen-together evidence conviction of an accused in a serious crime like murder cannot be recorded. However, if the last-seen-together evidence is sufficiently corroborated by other evidence such as motive and the medical evidence an accused can be convicted on such evidence. In " Navaneethakrishnan v. State, (2018) 16 SCC 161 ", the supreme court has held as under: 22. "...........It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. "...........It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration." 8. From the evidence of PW-5 and PW-6, it appears that in the night of 15.10.2009 the appellants came to the house of Budhram Birua and invited him for dinner. The fardbeyan of the informant was recorded on 18.10.2009 and PW-5, who is the village Munda, has stated in his examination-in-chief that on 20.10.2009 the wife of the deceased has informed him that the appellants have taken away her husband with them. But, in paragraph no. 2 of her examination-in-chief, PW-6 says that she had visited Munda and, thereafter, lodged the report. On such evidence, the prosecution cannot prove that immediately after her husband has gone missing the informant has informed the village Munda and this has also to be kept in mind that the other co-villagers have not supported the prosecution case. 9. Another important thing that emerges from such evidence is that delay in lodging the report with the police would be a relevant fact now. 10. The medical evidence also does not support the prosecution story of the appellants committing murder of Budhram Birua in the night of 15.10.2009 and concealing his dead body in the forest. Dr. Vinod Kumar Pandit-PW-7, who has conducted the post-mortem examination, has found one sharp cut on the neck, size 3"x 2"x3", and according to him the time elapsed since death was more than 24 hours but within one week. According to the prosecution, death of Budhram Birua has happened in the intervening night of 15/16.10.2009; the doctor has conducted the post-mortem examination at 12:30 p.m. on 20.10.2009 and in his cross-examination he has stated that it was not possible to calculate the actual time of death. In a case based on circumstantial evidence the prosecution is required to prove every incriminating circumstance by leading cogent and consistent evidence. In " C. Chenga Reddy Vs. In a case based on circumstantial evidence the prosecution is required to prove every incriminating circumstance by leading cogent and consistent evidence. In " C. Chenga Reddy Vs. State of A.P., (1996) 10 SCC 193 ", the Hon''ble Supreme Court has observed that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. In this case, the prosecution has failed to prove even the approximate time of death. 11. In the above facts, the last-seen-together story does not satisfy the proximate test which is crucial for deciding the worth of such evidence. 12. Pw-4 and PW-5 are seizure witnesses. They are witness to the inquest report also and PW-4 has signed the fardbeyan. PW-4 has been declared hostile at the instance of the prosecution. He has stated that he did not give his statement to the police. He was cross-examined by the prosecution and the defence. In his cross-examination by the defence, he has stated that he has signed the fardbeyan and the seizure memo at the police station and the police has taken his signature on a blank paper. PW-5 has stated that confessional statement of the appellants was not recorded before him and he has admitted that he has not read contents of the fardbeyan nor was its content read over to him. He further says that he has not seen the seizure memo and on asking of the police he has put his signature over that. In his cross-examination, he has admitted that the police has taken his signature on the plain paper. Under section 27 of the Evidence Act so much of information which is discovered in consequence of information received from a person accused of any offence in the custody of a police officer, and which relates distinctly to the fact thereby discovered , may be proved. In " Pulukuri Kottaya V. Emperor, (1947) AIR PC 67 ", the Privy Council has observed that section 27 of the Evidence Act incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to be proved. In " Pulukuri Kottaya V. Emperor, (1947) AIR PC 67 ", the Privy Council has observed that section 27 of the Evidence Act incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to be proved. It has been held that the condition necessary to bring section 27 of the Evidence Act into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates discovery to the fact thereby discovered may be proved. The logic behind section 27 is that if pursuant to the statement of an accused a new fact, previously not known to the police, is discovered and it is supported by recovery of some incriminating article which can be connected to the crime, it lends truthfulness of the statement of the accused and, therefore, that part of his statement can be proved in evidence. 13. However, recovery of the incriminating material even if pursuant to discovery of a new fact from the confessional statement of an accused has to be proved like any other fact. 14. In their confessional statements, the appellants have stated that at the time of dinner there was a quarrel between them and, angered, they killed Budhram Birua with a tangi. They have taken his dead-body to the hillock and wiped the blood stains from the tangi and the floor. They have also stated that they can show the place where they have thrown the dead-body. These disclosures by the appellants relate to the past events and, therefore, not admissible in evidence. The facts disclosed by the appellants in their confessional statement would not come within the purview of a fact discovered which alone is admissible under section 27 of the Evidence Act. Moreover, recovery of dead-body and tangi, which according to the prosecution was used in the crime, have not been proved by the prosecution; PW-4 and PW-5 both have not supported the prosecution''s case. They have admitted in the court that they do not know anything about the seizure and the police has taken their signature on plain papers. 15. Moreover, recovery of dead-body and tangi, which according to the prosecution was used in the crime, have not been proved by the prosecution; PW-4 and PW-5 both have not supported the prosecution''s case. They have admitted in the court that they do not know anything about the seizure and the police has taken their signature on plain papers. 15. From the above evidences laid by the prosecution, we find that the prosecution has failed to establish the place of occurrence, recovery of dead body and tangi, and prove statement of the appellants which has led to discovery of a new fact. 16. In a case based on circumstantial evidence motive provides an important link in the chain of the circumstance. (refer "Surinder Pal Jain V. Delhi Administration, (1993) Supp3 SCC 681 ". Except the confessional statement of the appellants, which is hit under section 25 and 26 of the Evidence Act, nothing has been produced on record to prove motive behind the crime rather the wife of the deceased has admitted in her cross-examination that there was friendship between her husband and the appellants ^^vfHk;qDrx.kksa ls igys ls nksLrh FkhA** 17. In our opinion, on the basis of the evidences led by the prosecution in Sessions Trial No. 12 of 2010; the prosecution has failed to establish last-seen-together story, motive, time of death and recovery of dead-body and tangi on the disclosure of the appellants, conviction of the appellants under sections 364, 302 and 201 read with section 34 of the Indian Penal Code is not proper. The prosecution has failed to prove the charges framed against the appellants. 18. Accordingly, the judgment of conviction under sections 302, 201 and 364 read with section 34 of the Indian Penal Code dated 25th February, 2015 and the order of sentence of R.I. for life and fine of Rs. 2,000/- each for the offence under section 302/34 of the Indian Penal Code, R.I. for two years and fine of Rs. 500/- each for the offence under section 201/34 of the Indian Penal Code and R.I. for ten years and fine of Rs. 1,000/- each for the offence under section 364/34 of the Indian Penal Code dated 27th February, 2015 passed against the appellants by the 1st Additional Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial no. 12 of 2010 are set-aside. 19. 1,000/- each for the offence under section 364/34 of the Indian Penal Code dated 27th February, 2015 passed against the appellants by the 1st Additional Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial no. 12 of 2010 are set-aside. 19. The appellants, namely, Raja Balmuchu and Purty Kunkal are acquitted of the charges under sections 302, 201 and 364 read with section 34 of the Indian Penal Code framed against them. 20. The appellants, namely, Raja Balmuchu and Purty Kunkal, who are in jail, shall be set free forthwith, if not wanted in connection with any other case. 21. In the result, Criminal Appeal (D.B.) No.176 of 2015 is allowed. 22. Let lower court records be transmitted to the court concerned, forthwith.